Murray and Gallagher - [2009] FMCAfam 276

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MURRAY & GALLAGHER

[2009] FMCAfam 276

FAMILY LAW – Interim proceedings – unilateral relocation of child by mother – application by carer who is not related for recovery of child.

Family Law Act 1975, ss.64B(2)(c), 60B, 60CC(4), 60CC, 60CA, 60CC(3)(f), 60CC(3)(e), ,60CC(3)(d), 60CC(3)(b), 60CC(3)(a), ,60CC(2)(b), 60CC(2)(a)

Goode & Goode [2006] FLC93-286
Re Evelyn (1998) FLC 92-807
Dennett & Norman [2007] FamCA 57
D & F (unreported) (2001) FamCA 382
Souter & Meagher & Anor [2007] FamCA 18
Morgan & Miles [2007] FamCA 1230
Cowling & Cowling (1998) FLC 92-801
Kelleher & Anderson (2007) FamCA 137

Applicant:

MS MURRAY

Respondent:

MS GALLAGHER

File Number:

HBC 208 of 2009

Judgment of:

FM Baker FM

Hearing date:

26 March 2009

Date of Last Submission:

26 March 2009

Delivered at:

Hobart

Delivered on:

30 March 2009

REPRESENTATION

Counsel for the Applicant:

Mr Fitzgerald

Solicitors for the Applicant:

Legal Aid Commission of Tasmania

Counsel for the Respondent:

Ms Pearce

Solicitors for the Respondent:

Women’s Legal Service (SA)Inc

IT IS NOTED that publication of this judgment under the pseudonym Murray & Gallagher is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
HOBART

HBC 208 of 2009

MS MURRAY

Applicant

And

MS GALLAGHER

Respondent

REASONS FOR JUDGMENT

Background

This is an application by Ms Murray in respect of the child [X] born in 2001. The applicant is not a parent or relative of the child. She has cared for her since November 2007.
The mother of the child, Ms Gallagher, is the respondent.
The applicant is seeking final orders that [X] live with her and that [X] spend such time with the respondent as agreed or ordered by the Court. She is seeking interim orders that [X] live with her, that she have the sole responsibility for the day to day care welfare and development of the child and that the child’s time with the respondent be reserved. She seeks a recovery order to return [X] to her care and other injunctive orders, as well as the appointment of an Independent Children’s Lawyer.
The applicant relies on her affidavit filed on 18 March 2009 and two affidavits of Ms G filed 23 March 2009 and 25 March 2009.
The respondent seeks, by way of final orders, a sole parental responsibility order and that [X] live with her. She seeks interim orders that she have sole parental responsibility, that [X] live with her and that she have liberty to relocate to South Australia with the child.
The respondent relies on her affidavit filed 24 March 2009 and the affidavit of Ms H filed 24 March 2009. She is the program manager of Teen Challenge, South Australia.

Relevant Law

The applicant seeks interim (parenting) orders. The principles to be applied on the determination of a parenting order application are set out in Goode & Goode.[1] I am required to identify the competing proposals, identify the issues in dispute and identify the agreed or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Murray and Gallagher

Details

AGLC: Murray and Gallagher [2009] FMCAfam 276
Case: [2009] FMCAfam 276
Decision Date: 30 March 2009

CaseChat Overview and Summary

This is an application by Ms Murray, a non-relative carer, seeking to have her child, [X], returned to her care after the child's mother, Ms Gallagher, relocated [X] from Tasmania to South Australia. The court was required to decide whether it was in the best interests of the child to return to Tasmania and live with the applicant or to remain in South Australia with the respondent. The court also had to determine the appropriate amount of time the child should spend with the respondent.

The court considered the primary considerations under section 60CC of the Family Law Act 1975, including the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm. The court also considered the secondary considerations in section 60CC(3) and the extent to which each parent had fulfilled their responsibilities as a parent.

The court found that the applicant's proposal would not enable the child to have a meaningful relationship with the respondent, and the respondent's proposal would not enable the child to have a meaningful relationship with the applicant. The court also found that there was not sufficient evidence to determine whether the respondent had the capacity to provide for the child's needs.

In conclusion, the court found that it was in the best interests of the child to return to Tasmania where she was residing prior to the unilateral relocation by the mother. The court ordered that the child continue to live with the applicant until the trial and that she attend [N] School. The court also ordered that an Independent Children's Lawyer be appointed for the child and that the trial of the matter be expedited and heard on 14 and 15 May 2009.

Orders